Community Created Content: law, business, policy (4)

The third section of the book Community Created Content: law, business, policy is concerned with policy issues related to community content production. There are four concrete legislative steps, which could advance the opportunities for user-based content creation. The first two proposals aim to reduce the legal risks associated to publishing material the users. The last two proposals would establish new sources for getting legal material for user-based content creation.

Copyright liability is currently based on a strict liability doctrine: even non-wilful infringers have to pay. Yet, there could be a statutory limit on how much additional litigation costs could be included to the damages. – Another issue is that this kind of change in law does not seem realistic in the near future.

For community content creation, the rules for using existing works are in central place regarding the limits of creativity. Normal licensing fees can be prohibitively expensive for non-commercial purposes and more serious licensing negotiations may be too expensive for many small and medium sized companies. However, the EU copyright directive recognizes only two general user rights, which allow derivative use of works without permission from the right holder. Due to the extensive harmonization there is very little chance that more user rights would be added in the near future.

Due to the long duration of copyright and the lack of formal registration, the ownership of a certain work is often very hard or even impossible to establish reliably. As a consequence a great number of copyrighted works is currently not utilized. This problem has to be solved on statutory level. The optimal solution would be a system that requires registration of works after a certain period (5-20 years) from the publication if the right holder still insists for retaining full commercial control of the work. An intermediate solution might include for example a way to put money on an account for possible copyright claims and a procedure to demand in public the right holder(s) of a work to identify themselves.

Then there are the government documents. It is difficult to argue why works prepared with tax payers’ money should be entitled to copyright. The economic incentive for creation does not arise from licensing fees and also the second traditional reason for copyright – securing the publication of works – can be solved otherwise. Second major issue is governmental re-use. Governments are producing significant amounts of material, which has potential to be further commercialized. A typical example is weather data, which has a wide range of possible uses beyond normal weather forecasts sent in TV and radio. The big question is how this material should be licensed.

Besides all these legislative issues, there is the issue of open content and collecting societies. Open content licensing and copyright collectives in Europe have two major problems. First, if an author wishes to use the services of collecting societies, he must typically assign the collecting society necessary exclusive rights to the work. This means that the author can no longer license the work, or any version of it, on the Internet with open content or any other terms that conflict with the policies of the collecting society in question. Second, collecting societies have in general the right to represent also those authors, which are not signed with the society. This means that a user may be obliged to pay royalties to the society even though the author has chosen to use an open content license. The collecting societies as well as the open content licenses serve the public by lowering transaction costs. Finding a way to combine the two institutions could mean all the artists receiving payments for the use of their works and at the same time consumer would have more culture available on creators’ terms. In order to reach the goal both institutions must make changes. Creative Commons must clarify its licenses and modify them to fit to the automatic licensing scheme of the collecting societies’. The collecting societies on their behalf have to open their paternalistic administration systems to reflect the changed motivations of rights owners and the new business models they are using.

Last but not least, one of the most crucial problems with open content licensing is the incompatibility problem. It could be perhaps best tackled through better mutual coordination with different licensing initiatives.

The book has been published by Turre Publishing and is available as a free pdf or as a printed book, available through Amazon.

Blog Posting Number: 644

Tags: copyright, creative commons, community created content, user generated content